Women's Equality, Dignity and Fairness Act

Summary: The Women’s Equality, Dignity and Fairness Act would lay out a broad abortion rights vision including the right of women to abortion coverage in both public and private insurance, the right of clinics to operate in safety and as medically appropriate, the right of patients to receive the truth about reproductive medicine, and the right of qualified medical professionals to deliver abortion services.

Background Summary

Abortion is one of the safest and most common medical procedures in the United States. The Centers for Disease Control found that legal abortion is significantly safer than childbirth, and a study in the American Journal of Public Health reported that first-trimester abortion is one of the safest medical procedures in America. Approximately three in ten women will have an abortion in their lifetimes and will need access to safe, legal facilities to obtain abortion care.

Women’s equality, dignity and fairness requires that women have access to abortion regardless of their economic status or source of insurance coverage. And yet, 33 states and the District of Columbia prohibit the use of state Medicaid funds for abortions, except in limited cases. Twenty-five states restrict abortion coverage in their insurance exchanges. Twenty-one states restrict abortion coverage for state employee health plans. And ten states restrict abortion coverage in standard private insurance plans.

Women’s equality, dignity and fairness requires that women are able to access reproductive healthcare clinics without fear of assault. And yet, patients are stalked, threatened, and harassed. In addition to being blocked on public walkways and being called murderers, anti-choice protesters often make patients fear for their personal safety.

Women’s equality, dignity and fairness requires that abortion, provided by qualified medical professionals, be accessible to all women. And yet, because of restrictive laws and physical threats, the number of abortion providers has declined in recent years. The American College of Obstetricians and Gynecologists (ACOG) recommends allowing trained advanced practice clinicians (APCs)—nurse practitioners, certified nurse-midwives and physician assistants—to perform aspiration and medication abortions, yet only a few states allow it

Women’s equality, dignity and fairness requires that reproductive health care clinics are not forced to close because of politics. And yet, 24 states have Targeted Regulation of Abortion Providers or “TRAP laws” that are intended to close abortion clinics. Most often, the restrictions dictate that abortions be performed at sites that are the functional equivalent of ambulatory surgical centers, or even hospitals, which makes the delivery of health care services prohibitively expensive. Other TRAP laws require clinicians at abortion facilities to have admitting privileges at a local hospital or mandate transfer agreements with hospitals, effectively giving hospitals veto power over whether an abortion clinic can exist.

The Women’s Equality, Dignity and Fairness Act lays out a broad abortion rights vision. Abortion rights includes the right to abortion coverage in both public and private insurance, the right of clinics and clinic patients to be safe from violence, the right of women to truthful medical information, and the right of all patients to medically appropriate care.

Model Legislation

SECTION 1. SHORT TITLE

This Act shall be called the “Women’s Equality, Dignity and Fairness Act.”

SECTION 2. FINDINGS AND PURPOSE

(A) FINDINGS—The legislature finds that:

1) Approximately three in ten women will have an abortion in their lifetimes, and will need access to safe, legal facilities to obtain abortion care without delay.

2) Abortion is one of the safest medical procedures in the United States.

3) Women’s equality, dignity and fairness requires that women have access to abortion regardless of their economic status and that no woman should have the decision to have, or not to have, an abortion made for her based on her ability or inability to afford the procedure. Since 1976, the federal government has withheld funds for abortion coverage through the Medicaid program as well as other federal health plans and programs. Seventeen states, however, have policies that include Medicaid abortion coverage because it is wrong to coerce women who cannot afford abortion to, for no other reason, carry a pregnancy to term.

4) Women’s equality, dignity and fairness requires that women are able to access reproductive healthcare clinics without fear of assault. Every individual should be free to make personal health care decisions without fear of harassment and violence. Over the years, hundreds of reproductive health care facilities have experienced bombings, arsons and other attacks. Employees and physicians have been targeted, physically injured, and in some cases killed. Health care providers have been stalked, threatened, and harassed in person, on the phone, and through the mail.

5) Women’s equality, dignity and fairness requires that women are given truthful science-based information about reproductive health care clinics. Some Crisis Pregnancy Centers (CPCs) use advertising to mislead women contemplating abortion into believing that their facilities offer abortion services and unbiased counseling—when the opposite is true. Because of the time-sensitive and constitutionally protected nature of the decision to terminate a pregnancy, false and misleading advertising about the services offered by CPCs is of special concern.

6) Women’s equality, dignity and fairness requires that abortion, provided by qualified medical professionals, be accessible to all women. The number of abortion providers has decreased due to practice restrictions and threats of violence. The American College of Obstetricians and Gynecologists (ACOG) recommends allowing advanced practice clinicians (APCs)—nurse practitioners, certified nurse-midwives and physician assistants—to perform aspiration abortions and medication abortions. Studies show that trained APCs are fully qualified to provide aspiration and medication abortion services.

7) Women’s equality, dignity and fairness requires that reproductive health care clinics are not forced to close because of politics. Today, almost 90 percent of U.S. counties lack an abortion facility. In 2015, four states had only one abortion provider, and at least ten states had three or fewer abortion providers. Clinic closures can force women to travel long distances to reach the nearest clinic, or force women to delay care as they arrange transportation, time off from work, and save additional money for travel or lodging costs. Women who face these obstacles are more likely to seek out less safe alternatives to legal abortion.

(B) PURPOSE—This law is enacted to guarantee women’s equality, dignity, and fairness by ensuring the availability of abortion free from violence and political and economic obstacles.

SECTION 3. ABORTION COVERAGE EQUITY

After section XXX, the following new section XXX shall be inserted:

(A) DEFINITIONS—In this section:

1) “Abortion” means any medical treatment intended to induce the termination of a pregnancy except for the purpose of producing a live birth and any related services, including but not limited to diagnostic, counseling, referral, or follow up services.

2) “State” means the state, any state agency, and every county, city, town, municipal corporation, quasi-municipal corporation, and public institution in the state.

(B) POLICY TO COVER ABORTION

Abortion shall be covered in all types of health insurance offered, sold, or purchased in this State, including all private plans, all state-funded plans, and all state-provided benefits.

5) Section XXX [any provision of law that prohibits abortion care in any other state-funded insurance program] is hereby repealed.

(D) SEVERABILITY

The provisions of this section shall be severable, and if any phrase, clause, sentence or provision is declared to be invalid or results in noncompliance with federal requirements that are a condition to the allocation of federal funds to the state, those words will not be enforced only to the extent they jeopardize federal funding or the validity of the Act.

SECTION 4. ACCOUNTABILITY FOR HARASSMENT OF WOMEN

After Section XXX, the following new section XXX shall be inserted:

(A) DEFINITIONS—In this section:

1) “Coercion” means when a person, with intent unlawfully to restrict freedom of action of another to the detriment of the other:

a) Threatens to commit any criminal offense;

b) Makes any scheme, plan, or pattern intended to cause a person to believe that the decision to seek reproductive or sexual health care or failure to seek reproductive health care would result in serious harm to or physical restraint against any person; or

c) Abuses or threatens the abuse of the legal process.

2) “Entity” means a partnership, limited partnership, association of two or more individuals, or any type of corporation, whether incorporated or unincorporated.

3) “Harassment” means a knowing and willful course of conduct that is directed at a specific person, that would cause a reasonable person to be seriously alarmed or harassed, and that in fact seriously alarms or harasses the person, and that serves no legitimate purpose.

4) “Health care provider” means any person, corporation, facility or institution licensed or otherwise authorized by the state to provide health care services, including, but not limited to, any physician, coordinated care organization, hospital, health care facility, dentist, nurse, optometrist, podiatrist, physical therapist, psychologist, chiropractor or pharmacist and an officer, employee or agent of such person acting in the course and scope of employment or agency related to health care services.

5) “Health care facility” means any office, building, or other place in which health care services are provided by a health care provider, whether or not the facility is licensed by the state.

6) “Interfering” means knowingly and intentionally pursuing a course of conduct designed to deter, prevent or delay a person from providing or referring for reproductive health care through threats, intimidation, force, coercion or misrepresentation.

7) “Intimidation” means an act or course of conduct directed at a specific person that causes fear or apprehension in such person and serves no legitimate purpose.

8) “Misrepresentation” means a false statement of substantive fact, or conduct that leads to a belief of a substantive fact material to proper understanding of the matter in hand, made with intent to deceive or mislead.

9) “Reproductive health care” means abortion, contraception, infertility treatment, prenatal care, miscarriage management, treatment for STIs, as well as counseling for all of these services.

10) “Social services office” means any office or facility in which social services, or any domestic violence center or are provided, including but not limited to referral for health care services.

(B) INTERFERENCE WITH THE PROVISION OF REPRODUCTIVE HEALTH CARE PROHIBITED

1) An individual or entity may not intentionally or knowingly prevent or delay, or attempt to prevent or delay, a health care provider or health care facility’s efforts to provide reproductive health care, or a social services office’s efforts to refer for reproductive health care, by:

a) Harassing, coercing or intimidating a health care provider, or interfering with the performance of a duty or the exercise of a function by an employee of a health care facility where reproductive health care is provided;

b) Interfering with the normal course of operations of a facility that provides reproductive health care; or

2) No government official or agency may act with the intent of preventing or unnecessarily delaying a health care provider’s or medical facility’s efforts to provide reproductive health care, except when specifically required by law.

(C)CIVIL CAUSE OF ACTION AND INJUNCTIVE RELIEF

1) Any individual or entity who has had his, her or its ability to provide reproductive health care limited or prevented as a result of a violation of this section shall have a cause of action against the individual or entity that engaged in that conduct. Any health care provider, entity or facility that has experienced a violation of this section may bring an action for compensatory damages and/or for injunctive relief for the purpose of stopping or preventing violations or threatened violations of this section, or to determine the applicability of this section to actions or threatened future actions. Such individual or entity may bring an action for statutory damages as permitted under this section, which in the event of a violation of the Act shall be fifteen thousand dollars ($15,000) per violation.

2) For all violations of this section, the plaintiff may recover reasonable attorneys’ fees and costs.

3) Any plaintiff bringing a claim under this section shall be entitled to proceed under a pseudonym upon providing the court with affidavit asserting the harm that could arise to the plaintiff and/or his or her family or home if his or her identity is not concealed. The plaintiff shall be entitled to a presumption from the court that identification poses a risk of retaliatory physical or mental harm to the requesting party and to innocent nonparties. In a suit to which this section applies, only the following persons are entitled to know the true identifying information about the plaintiff: the judge and any court personnel working with the judge on the action in question; a party to the action; the attorney representing a party to the action; and a person authorized by a written order of a court specific to that person. The court shall order that no person shall divulge that information to anyone without a written order of the court, and a court shall hold a person who violates the order in contempt.

4) Any plaintiff bringing a claim under this section shall be presumed entitled to a protective order from the court prohibiting discovery regarding the following facts and any other associated facts that the plaintiff alleges will endanger him or herself or his or her family: the plaintiff’s residential and work addresses, phone numbers and email addresses, any information about the plaintiff’s children, parents, or other family members including their names, ages, where they attend school, their phone numbers and email addresses, any information about contractors with whom the plaintiff works; and any other identifying information. If the defendant or defendants believe that the above information is relevant to the defense’s claims, defendant shall make a motion for discovery of that information under court seal. The court shall allow the information to be discovered only if the information is relevant to the defense’s claims, and only under seal with all non-relevant information redacted by plaintiff before it is provided to the court.

SECTION 5. CRISIS PREGNANCY CENTER FRAUD

After section XXX, the following new section XXX shall be inserted:

(A) DEFINITIONS—In this section:

1) “Abortion” means any medical treatment intended to induce the termination of a pregnancy except for the purpose of producing a live birth.

2) “Client” means an individual who is inquiring about or seeking services at a pregnancy services center.

1) “Emergency contraception” means any drug or device approved by the U.S. Food and Drug Administration that prevents pregnancy after sexual intercourse.

3) “Health information” means any oral or written information in any form or medium that relates to health insurance and/or the past, present or future physical or mental health or condition of a client.

4) “Limited services pregnancy center” means a pregnancy services center that does not directly provide, or provide referrals to clients, for abortions or emergency contraception.

5) “Pregnancy services center” means a facility, including a mobile facility, where the primary purpose is to provide services to women who are or may be pregnant, and that either offers obstetric ultrasounds, obstetric sonograms or prenatal care to pregnant women, or has the appearance of a medical facility. A pregnancy service center has the appearance of a medical facility if two or more of the following factors are present:

a) The facility offers pregnancy testing and/or pregnancy diagnosis;

b) The facility has staff or volunteers who wear medical attire or uniforms;

e) The facility has staff or volunteers who collect health information from clients; or

f) The facility is located on the same premises as a state-licensed medical facility or provider or shares facility space with a state-licensed medical provider.

6) “Premises” means land and improvements or appurtenances or any part thereof.

(B) UNLAWFUL FRAUD

It is unlawful fraud for any limited services pregnancy center to disseminate or cause to be disseminated before the public in [insert jurisdiction], or to disseminate before the public anywhere from [insert jurisdiction], any advertising about the services performed at that center if the management of the center knows or, by the exercise of reasonable care, ought to know is untrue or clearly designed to mislead the public about the nature of services provided. Advertising includes representations made directly to consumers; marketing practices; communication in any print medium such as newspapers, magazines, mailers or handouts; any broadcast medium such as television or radio; or over the Internet such as through websites and web ads.

[Bill drafting note: A particular state might use language that is similar to any existing Unfair and Deceptive Trade Practices Act.]

(C) ENFORCEMENT

1) The [insert appropriate authority] may enforce the provisions of this section through a civil action in any court of competent jurisdiction. Before filing an action under this section, [insert appropriate authority] shall give written notice of the violation to the limited services pregnancy center. The written notice shall indicate that the limited services pregnancy center has ten (10) days in which to correct the false, misleading, or deceptive advertising. If the limited services pregnancy center has not responded to the written notice within ten (10) days or refuses to correct the false, misleading, or deceptive advertising within that period, [insert appropriate authority] may file a civil action.

2) [Insert appropriate authority] may apply to any court of competent jurisdiction for injunctive relief compelling compliance with any provision of this section and correcting the effects of the false, misleading, or deceptive advertising. Such an injunction may require a limited services pregnancy center to:

a) Pay for and disseminate appropriate corrective advertising in the same form as the false, misleading, or deceptive advertising.

b) Post a notice on its premises, in a location clearly noticeable from the waiting area, examination area, or both, stating:

i. Whether there is a licensed medical doctor, registered nurse, or other licensed medical practitioner on staff at the center; and

ii. Whether abortion, emergency contraception, or referrals for abortion or emergency contraception are available at the center.

c) Any other narrowly tailored relief that the court deems necessary to remedy the adverse effects of the false, misleading, or deceptive advertising on women seeking pregnancy-related services.

3) Upon a finding by a court of competent jurisdiction that a limited services pregnancy center has violated this section, [jurisdiction] shall be entitled to recover civil penalties from each and every party responsible for the violation of not less than [$500] and not more than [$5,000] per violation. In addition, if the [jurisdiction] prevails it shall be entitled to reasonable attorney’s fees and costs pursuant to order of the court.

4) Nothing in this section shall be interpreted as restricting, precluding or otherwise limiting a separate or concurrent criminal prosecution under the [insert relevant law]. Jeopardy shall not attach as a result of any court action to enforce the provisions of this section.

[Bill drafting note: Because of the sensitivity of First Amendment issues and the fact that abortion opponents often file suit over the First Amendment, Findings should be carefully crafted to describe the problem in your own jurisdiction.]

SECTION 6. QUALIFIED PROVIDERS OF ABORTION

(A) DEFINITIONS—In this section:

1) “Aspiration abortion” means medical treatment intended to induce the termination of a pregnancy by dilating the cervix and using suction to remove the fetus and related pregnancy material from the uterus.

(B) QUALIFIED PROVIDERS TO INCLUDE NURSE PRACTITIONERS AND NURSE-MIDWIVES

1) A nurse practitioner or a certified nurse-midwife is authorized to prescribe and supervise medication abortions and to perform an aspiration abortion if he or she has successfully completed training and achieved clinical competency and adheres to standardized procedures approved by the [insert relevant board governing nurse practitioners and certified nurse-midwives].

2) It is unprofessional conduct for any nurse practitioner or certified nurse-midwife to prescribe or supervise an aspiration or medication abortion without prior successful completion of training and validation of clinical competency.

1) A physician assistant is authorized to prescribe and supervise medication abortions and to perform an aspiration abortion if he or she has successfully completed training and achieved clinical competency and adheres to standardized procedures approved by the [insert relevant board governing physician assistants].

2) It is unprofessional conduct for any physician assistant to prescribe or supervise an aspiration or medication abortion without prior successful completion of training and validation of clinical competency.

[Bill drafting note: You will have to consult with local advocates and the effected healthcare professional associations before writing this bill. Healthcare regulatory schemes often differ from state to state. In addition, there are various ways to achieve the same goal, depending on the wording of your state’s “physician-only” provision (that is, existing statutory language that an abortion can be performed only by a physician):

a) A few states have used regulatory processes and a few have used Attorney General opinions to allow APCs to practice despite so-called “physician-only” laws. These non-legislative avenues might be possible in your state.

b) Depending on the state, you might simply repeal the “physician-only” provision; the underlying statutory and regulatory scheme might be sufficient to allow APCs to handle both aspiration and medication abortions.

c) Alternatively, by inserting definitions of APCs or by using current definitions in state law, you might amend the existing “physician-only” provision to add APCs, making it a physician and APCs only law. Unless you add additional restrictions, this approach would cover both aspiration and medication abortions.]

SECTION 7. REPEAL OF TARGETED REGULATION OF ABORTION PROVIDERS

1) Section XXX [any provision of law that singles out abortion facilities or personnel for requirements that are more burdensome than those imposed on facilities that provide medically comparable procedures] is hereby repealed.

2) Section XXX [any provision of law that is the proximate cause of the closure of an abortion facility or facilities and which has not been proven by clear and convincing evidence necessary to prevent a bona fide threat to patient safety] is hereby repealed.

1) Section XXX [any provision of law that requires a waiting period before an abortion is performed] is hereby repealed.

2) Section XXX [any provision of law that necessitates multiple trips to a clinic for reasons other than medical necessity] is hereby repealed.

3) Section XXX [any provision of law that necessitates an ultrasound or sonogram for reasons other than medical necessity] is hereby repealed.

SECTION 9. SEVERABILITY

The provisions of this Act shall be severable, and if any phrase, clause, sentence or provision is declared to be invalid or is preempted by federal law or regulation, the validity of the remainder of this Act shall not be affected.